성년후견제도에 관한 연구 -A Research on the Adult Guardianship System

Abstract

The Adult Guardianship System is a system that supports the normal activities of an adult who does not have enough judgement ability so that their own decision making process is respected and the rest of the capabilities can be used to its fullest potential. In Korea, the Adult Guardianship System is at its implementation stage and research is necessary to seek out which direction it should take. Therefore, this paper aims to examine the current status by looking at preceding researches in relation to the implementation of the Adult Guardianship System and to search out alternative options for areas that are insufficient to supplement them in any way possible. Many advanced nations have already implemented the Adult Guardianship System and it is becoming a much developed system after having gone through several reforms. In Germany's case, it is carrying out a monistic Adult Guardianship System which is based on a Statutory Guardianship System. France which is the first country to have legislated the Adult Guardianship System is running the guardianship systems as a jurisdictional protective system as well. Japan, closest neighbor to Korea has also enacted and carrying out a special law regarding the arbitrary adult guardianship system befitting the concept of the adult guardianship system. Currently, Korea has the System for Incompetent People but there are a lot of issues pertaining to this system so the usage of it has been low. Following this turn of events, the academics and the legal authorities have come up with a series of law proposals in the field of adult guardianship to replace the System for Incompetent People. The Department of Justice announced and preluded a partial civil legislation proposal which had the gist of implementing the Adult Guardianship System on September 18th 2009. (Henceforth called the revision plan) In this paper, attempts have been made to investigate and look closely into the contents of the revision plan before it passed the National Assembly and suggested the following issues that would need to resolved for insufficient parts existing within the proposal. First, the revised bill limits its scope to cases where there are insufficient judgement ability, but the physically challenged should also be included in the adult guardianship system. Only by including physically challenged people who can only take care of partial administrative paperwork or the whole administrative process can the Adult Guardianship System realize the practical concept of social welfare. Secondly, the claimant for the opening trial of the adult guardianship should be expanded to the local autonomous government districts. With only the relatives and the lawyer's claims, there is a limit to what can be done so with the participation of the local community, we can expect a more active running of the system. Thirdly, if the Adult Guardianship Systems takes effect, the workload of the Family Court is expected to increase dramatically. As such, there should be a expansion of personnel and materialistic system of the Family Court. A new establishment of the guardian court as a professional division is necessary along with professional investigative teams and consultants should be installed as well. Fourthly, the quality of the guardian is the most important in the Adult Guardianship System. Therefore, in order to cultivate professional guardians, there is a need to establish an institution which will raise such individuals. Fifthly, in order for anyone to take advantage of the Adult Guardianship System, a public support system from the government is necessary. In the revision plan, the financially limited guardian especially had a hard time using the system so there should be an alternative plan to support this from the government or the local autonomous governing bodies. Finally, the revision plan still follows the current incumbent methods of public announcements so the problem of respect for privacy still remains. In order to resolve that matter, a new Adult Guardianship System should be set up where only the barest minimum of information that need to be registered is necessary. As it can seen above, by considering foreign countries' cases where they are already executing the Adult Guardianship System, a more active discussions should be carried out so that a new system more appropriate to Korea can be formulated. The implementation of the Adult Guardianship System is an issue that cannot be postponed any further but what's more important is the firm establishment and practical securement followed by active usage. In order to make this into a reality, continued interest and discussions are an absolute must in the future.